Citation Nr: 0721846
Decision Date: 07/20/07 Archive Date: 08/02/07
DOCKET NO. 04-13 558 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for neck pain.
2. Entitlement to service connection for pain and limitation
of motion of both feet.
3. Entitlement to service connection for upper back pain
with scapulocostal syndrome.
4. Entitlement to an increased initial rating for cystic
acne, rated as 30 percent disabling prior to September 14,
2004, and as 60 percent disabling on and after September 14,
2004.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
D. Vella Camilleri, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1973 to
December 1974.
This matter is now before the Board of Veterans' Appeals
(Board) pursuant to a January 2002 rating decision by the New
Orleans, Louisiana, Regional Office (RO) of the Department of
Veterans Affairs (VA). Appeal to the Board was perfected.
The issues of entitlement to service connection for neck
pain, for a bilateral foot disability, and for upper back
pain with scapulocostal syndrome are addressed in the REMAND
portion of the decision below and are REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
The issues of entitlement to service connection for diabetes
mellitus and peripheral neuropathy raised during the November
2006 hearing are REFERRED to the RO for appropriate action.
FINDINGS OF FACT
1. Prior to September 14, 2004, the veteran's cystic acne
was manifested by ulceration and the use of systemic
antibiotic medication, which more nearly approximates
systemic manifestations.
2. From August 30, 2002 to September 14, 2004, the veteran's
cystic acne did not affect more than 40 percent of the entire
body or of exposed areas, or require constant or near-
constant systemic therapy such as corticosteroids or other
immunosuppressive drugs during the year prior.
3. As of September 14, 2004, the veteran is receiving the
maximum disability evaluation for service-connected cystic
acne.
CONCLUSIONS OF LAW
1. The criteria for a disability rating of 50 percent, and
no greater, for cystic acne have been met from the effective
date of service connection. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7806 (2002) and
(2006).
2. As of September 14, 2004, the criteria for a rating in
excess of 60 percent for cystic acne have not been met.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic
Code 7806 (2002) and (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased rating
Disability evaluations are based upon the average impairment
of earning capacity as determined by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part
4 (2006). Separate rating codes identify various
disabilities. 38 C.F.R. Part 4. In determining the current
level of impairment, the disability must be considered in the
context of the whole recorded history, including service
medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2006).
Because this is an appeal from the initial disability
evaluation assigned when service connection was granted, the
Board has considered whether a "staged" rating is
appropriate. See Fenderson v. West, 12 Vet. App. 119, 126
(1999). For the reasons discussed below, the Board concludes
that a staged rating is appropriate, as the evidence supports
the assignment of a 50 percent rating, but no higher, from
the effective date of service connection, but does not
support the assignment of a rating in excess of 50 percent
between August 30, 2002 and September 14, 2004, or a rating
in excess of 60 percent as of September 14, 2004.
Service connection for cystic acne was granted by analogy
pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7806, with a
30 percent evaluation effective November 22, 1999. See
January 2002 rating decision. Evaluation of a service-
connected disability in accordance with schedular criteria
that closely pertain to an analogous disease in terms of
functions affected, anatomical localization, and
symptomatology, is permitted. 38 C.F.R. § 4.20 (2006). The
veteran filed a notice of disagreement (NOD) following the
issuance of the January 2002 rating decision, and the RO
subsequently granted an increase of 60 percent for cystic
acne. The initial effective date assigned for the 60 percent
rating was November 22, 1999, but the RO amended the date to
September 14, 2004. See December 2004 and July 2005 rating
decisions. Despite the increase granted, and because the
effective date of the increased rating does not go back to
the original date of claim, the veteran's appeal remains
before the Board. Cf. AB v. Brown, 6 Vet. App. 35 (1993).
During the appeal, the rating criteria for skin diseases were
amended, effective August 30, 2002. Prior to the amendments,
a 50 percent evaluation was warranted for eczema with
ulceration or extensive exfoliation or crusting, and systemic
or nervous manifestations, or eczema that was exceptionally
repugnant. See 38 C.F.R. § 4.118, Diagnostic Code 7806
(2002). New Diagnostic Code 7806 (2006) assigns a 60 percent
evaluation for dermatitis or eczema that affects more than 40
percent of the entire body or of exposed areas; or constant
or near-constant systemic therapy such as corticosteroids or
other immunosuppressive drugs required during the past 12-
month period. Both the old and new criteria apply, but the
substantive new criteria cannot be applied before their
August 30, 2002 effective date.
The veteran contends that his service-connected cystic acne
merits a rating in excess of 30 percent for the period of
time before September 14, 2004. More specifically, he
asserts that his symptoms as noted during a March 2001 VA
compensation and pension (C&P) skin diseases examination more
closely resemble the criteria for a 50 percent evaluation
under old Diagnostic Code 7806. See August 2002 NOD.
The evidence of record prior to the August 30, 2002
amendments includes VA treatment records and the March 2001
VA C&P examination report. In December 1999, the veteran had
already undergone one month of therapy related to skin
lesions, but was noted to be experiencing xerosis (dry skin)
and pruritus (itching) due to the therapy. See medical
record/progress note. A February 2001 VA physician progress
note indicates that the veteran's back showed slight
improvement with remaining widespread cysts on the upper
back. He had some relief from using Neutrogena soap and
Lubriderm lotion and had been prescribed two medications to
control his cystic acne, namely Keflex and Diflucan. During
the March 2001 VA C&P skin diseases examination, it was noted
that the veteran had more than 30 hyperpigmented lesions on
his back and ulcerations in the groin area, on both feet, and
on his neck. Some of the skin lesions were noted to be
weeping and infected and the lesions and ulcerations were
noted to be itchy and tender.
The Board finds that the symptomatology of the veteran's
service-connected cystic acne noted in the treatment records
and during the March 2001 VA examination more nearly
approximates the criteria for a 50 percent evaluation under
old Diagnostic Code 7806. 38 C.F.R. § 4.7 (2006). The VA
examiner in March 2001 specifically noted ulceration, and the
examination report and treatment records show the use of
systemic medication and more than 30 hyperpigmented lesions,
which the Board concludes more nearly approximates systemic
manifestations, so as to support the assignment of a 50
percent rating for cystic acne under the rating criteria in
effect before August 30, 2002. See 38 C.F.R. § 4.7.
The Board must further determine whether the evidence
supports the assignment of a rating in excess of 50 percent
under new Diagnostic Code 7806. The only available rating in
excess of 50 percent is the 60 percent evaluation described
above. The evidence of record between August 30, 2004 and
September 14, 2004, however, does not warrant the assignment
of a 60 percent rating, as there is no evidence that the
veteran's cystic acne affected more than 40 percent of the
entire body or of exposed areas, or required constant or
near-constant systemic therapy such as corticosteroids or
other immunosuppressive drugs during the prior year. See
December 2002 VA C&P skin disease examination and March 2004
addendum opinion; July 2004 letter from Dr. J.C. Odom; VA
treatment records. The Board acknowledges the veteran's
August 2004 statement in which he indicates that Dr. Odom
reports he has been on constant systemic therapy for the past
four years. None of the medications listed by Dr. Odom in
his July 2004 letter, however, are classified as
corticosteroids or immunosuppressive drugs.
The veteran also contends that his service-connected cystic
acne merits a rating in excess of the 60 percent evaluation
that was assigned effective September 14, 2004. The 60
percent evaluation is the maximum schedular rating provided
under 38 C.F.R. § 4.118, Diagnostic Code 7806 (2006). As
such, a rating in excess of 60 percent cannot be assigned
under this diagnostic code as of September 14, 2004.
Despite the fact that the veteran is already receiving the
maximum schedular rating provided under new Diagnostic Code
7806, the Board must consider the other diagnostic criteria
related to the skin to determine whether an increased rating,
or additional separate compensable ratings, are warranted.
See Esteban v. Brown, 6 Vet. App. 259 (1994) (impairments
associated with a service-connected disability may be rated
separately unless they constitute the same disability or the
same manifestation). Esteban does not apply in the instant
case, however, as the rating criteria used to evaluated the
veteran's service-connected cystic acne specifically
instructs VA to use the rating criteria for dermatitis or
eczema, or to rate the disability as disfigurement of the
head, face or neck (Diagnostic Code 7800) or scars
(Diagnostic Codes 7801-7805), depending upon the predominant
disability. See 38 C.F.R. § 4.118, Diagnostic Code 7806
(2006).
II. Duties to notify and assist
VA's duties to notify and assist claimants in substantiating
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2006);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). In
accordance with 38 C.F.R. § 3.159(b)(1), proper notice must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; and (3) that the claimant is
expected to provide. Proper notice must also ask the
claimant to provide any evidence in his or her possession
that pertains to the claim. Notice should be provided to a
claimant before the initial unfavorable decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
Prior to the issuance of the rating decision that is the
subject of this appeal, the veteran was advised of the
necessary evidence to substantiate a claim for service
connection; that the RO would assist him in obtaining
additional information and evidence; and of the
responsibilities on both his part and VA's in developing the
claims. See June 2001 letter. He was later informed him of
the need to send any evidence in his possession that pertains
to the claims in a February 2004 statement of the case (SOC).
Although it was not until after the rating decision that is
the subject of this appeal that the veteran was provided
notice regarding his claim for increased rating, the
increased rating claim stems from a NOD, which is subject to
section 7105 procedures. VAOPGCPREC 8-2003, 69 Fed. Reg.
25180 (2004). The Board is bound to follow this precedent
opinion. 38 U.S.C.A. § 7104(c) (West 2002). As such, VA
fulfilled its notification duties. Quartuccio, 16 Vet. App.
At 187.
The Board acknowledges that the veteran was not provided
notice of the appropriate disability rating and effective
date of any grant of service connection. There is no
prejudice to the veteran in proceeding with the issuance of a
final decision despite VA's failure to provide such notice,
as his claim for service connection for cystic acne was
substantiated years ago. Furthermore, he has not disagreed
with the effective date of the award of cystic acne, and he
was subsequently given notice and an opportunity to provide
information, evidence and argument concerning a higher
rating. See Dingess v. Nicholson, 19 Vet. App. 473 (2006).
VA also has a duty to assist claimants in obtaining evidence
needed to substantiate a claim. 38 U.S.C.A. § 5103A (West
2002); 38 C.F.R. § 3.159 (2006). This duty has also been
met, as the veteran's service, VA and private medical records
have been obtained and he was given several appropriate VA
examinations in connection with his claim for increased
rating. The Board notes that the veteran's records have not
been obtained from the Social Security Administration;
however, the Board concludes that the veteran has not been
prejudiced by this because he has been assigned the maximum
schedular evaluation for the disability at issue for the
entire time period in question. The record does not
otherwise suggest the existence of additional, pertinent
evidence that has not been obtained. In fact, the veteran
indicated he had no additional documents to submit at his
November 2006 hearing.
For the reasons set forth above, the Board finds that no
further notification or assistance is necessary, and deciding
the appeal is not prejudicial to the veteran.
ORDER
A disability evaluation of 50 percent, and no higher, for
cystic acne is granted from the effective date of service
connection.
A disability evaluation higher than 60 percent for cystic
acne is denied for the period beginning September 14, 2004.
REMAND
Further development is needed before a decision can be issued
on the merits of the veteran's claims for service connection
for neck pain, for a bilateral foot disability, and for upper
back pain with scapulocostal syndrome. Further development
would ensure that the veteran's due process rights, including
those associated with the duties to notify and assist, are
met. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2006).
The evidence of record reveals that the veteran is in receipt
of benefits from the Social Security Administration (SSA).
See December 1987 VA Form 21-4138; November 1987 letter from
SSA; VA Form 21-0517-1 received in March 1995; VA progress
note dated in July 2000. No request for records from the
SSA, however, has ever been made. Medical records from SSA
pertaining to any original or continuing award of disability
benefits should be requested and associated with the claims
folder before a decision is rendered on the veteran's claim
for entitlement to service connection. See Murincsak v.
Derwinski, 2 Vet. App. 363 (1992); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
This will also give the veteran an opportunity to receive the
notice required by Dingess v. Nicholson, 19 Vet. App. 473
(2006) (as the degree of disability and effective date of the
disability are part of a claim for service connection, VA has
a duty to notify claimants of the evidence needed to prove
those parts of the claim).
A medical examination or medical opinion is necessary if the
information and evidence of record does not contain
sufficient competent medical evidence to decide the claim,
but: (A) Contains competent lay or medical evidence of a
current diagnosed disability or persistent or recurrent
symptoms of disability; (B) Establishes that the veteran
suffered an event, injury or disease in service, or has a
disease or symptoms of a disease listed in 38 C.F.R.
§§ 3.309, 3.313, 3.316, and 3.317 manifesting during an
applicable presumptive period provided the claimant has the
required service or triggering event to qualify for that
presumption; and (C) Indicates that the claimed disability or
symptoms may be associated with the established event,
injury, or disease in service or with another service-
connected disability. This requirement could be satisfied by
competent evidence showing post-service treatment for a
condition, or other possible association with military
service. 38 C.F.R. § 3.159(c)(4).
Concerning the claim for an upper back disability, the
veteran contends that he injured his spine and shoulders
after falling on his back during military maneuvers, and that
he later aggravated this injury while jacking up a vehicle in
service. He asserts that he has suffered from back pain ever
since his discharge. See February 2001 VA Form 9; VA Forms
21-4138 dated August 2002, December 2002, June 2005; hearing
transcript. In addition, the veteran's service medical
records contain several references to complaint of back pain.
See September 1973, August 1974, October 1974 and November
1974 records. At the time of his discharge, it was noted
that the veteran had scapulocostal syndrome that was
asymptomatic when not stressed. See December 1974 report of
medical examination. A February 2000 MRI of the lumbar spine
revealed no acute disc herniation or spinal canal stenosis,
but several discs in the upper and mid thoracic region
demonstrated changes of disc degeneration. In July 2002, the
veteran was diagnosed with lumbago. See VA records. Thus,
the three elements of 38 C.F.R. § 3.159(c)(4) are met, and an
examination should be scheduled.
As for the veteran's feet, his service medical records
contain an August 1973 record indicating that he complained
of pain in his left big toe and second metatarsal for two
month prior, but denied any preceding trauma, and a May 1974
record showing that he complained of painful feet when
running, alleging that he could not run in his boots. The
veteran has also reported that he injured his feet in a fall
from a cliff during service. See, e.g., VA Form 21-4138
dated in August 2002. Post-service evidence related to
treatment for pain in the feet includes a June 1999 x-ray of
the veteran's right foot, which showed early arthritic
changes in the first metacarpal phalangeal (MP) articulation
and lucency on the medial aspect of the distal head of the
first metatarsal, suggesting the possibility of gout. An
impression of possible gout in the first metatarsal and
osteoarthritic changes was made. Also, a July 2000 VA
progress note indicates that the veteran was seen with
complaint of painful calluses at the sub-fifth
metacarpophalangeal joint (MPJ) on the left foot, medial
hallux on the right foot, and soreness all over the balls of
his feet. He was assessed with calluses and foot pain, and
it was noted that his shoes were too small for his feet. A
September 2004 record from the veteran's private podiatrist,
Dr. B. Vierra, contains an assessment of pain in both feet,
tarsal tunnel in both feet, and peripheral neuropathy in both
feet. Thus, the three elements of 38 C.F.R. § 3.159(c)(4)
are met, and an examination should be scheduled.
The veteran is hereby notified that it is his responsibility
to report for any scheduled examination and to cooperate in
the development of the case. The consequences of failing to
report for a VA examination without good cause may include
denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2006).
Accordingly, the case is REMANDED for the following action:
1. Give the veteran the notice required
by Dingess v. Nicholson, 19 Vet. App. 473
(2006).
2. Request medical records from SSA
pertaining to any original or continuing
award of disability benefits. If no
records can be found, indicate whether
the records do not exist and whether
further efforts to obtain the records
would be futile.
3. Schedule the veteran for an
examination for the purpose of
ascertaining the current upper back
disability diagnosis or diagnoses. For
each diagnosis, the examiner should
indicate whether it is at least as likely
as not (i.e., probability of 50 percent
or greater) that the diagnosed disability
is related to service. The examiner
should explain the reason(s) for the
opinion(s). The claims folder should be
made available for review.
4. Schedule the veteran for an
examination for the purpose of
ascertaining the diagnosis or diagnoses
involving the feet. For each diagnosis,
the examiner should indicate whether it
is at least as likely as not (i.e.,
probability of 50 percent or greater)
that the diagnosed disability is related
to service. The examiner should explain
the reason(s) for the opinion(s). The
claims folder should be made available
for review.
5. Thereafter, readjudicate the claims.
If the benefit sought on appeal remains
denied, the veteran and his
representative should be provided a
supplemental statement of the case
(SSOC), and given an opportunity to
respond, before the case is returned to
the Board.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the U.S. Court of Appeals for Veterans Claims for additional
development or other appropriate action must be handled in an
expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West
Supp. 2006).
______________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs